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Questions For Class Discussion on June 28 and July 2, 2012

1. Define what a Constitution is and explain the implications of the Supreme Law Clause and Separation of Powers Doctrine in the Jamaican Constitution Order in Council, 1962. Answer Student is expected to define and explain as follows.

A Constitution is a body of law containing rules which determine the direction of State, including manner in which the State is organized. It is the body of fundamental principles according to which the State is governed. The Jamaican Constitution is a kind of parent source of law and therefore the basis of the rule of law with certain enshrined principles for the protection of the rights of individuals with state power subjugated to the Constitution and the Courts entrusted with duty to examine the activities of State (judicial review) to ensure they are in conformity with the Constitution. Section 2 of the Jamaican Constitution states that subject to sections 49 and 50, if any other law is inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the extent of the inconsistency be void. This is referred to as the Supreme Law clause which establishes the supremacy of the Constitution. Although the provisions of the Constitution can be altered, entrenchment procedures make it very difficult to change certain important provisions e.g. the Bill of Rights, the establishment of the Judiciary and its security of tenure. The Jamaican Constitution provides for the separation of powers of the three arms of the State, namely, the Executive, the Legislature (Parliament) and the Judiciary. The separation of powers doctrine provides that no arm of the State should exercise the functions of another arm. The Executive consists of the Prime Minister and the Cabinet which sets policy for the governance of the country while Parliament is entrusted with making laws for the peace, order and good governance of the 1

country. The Judiciary is given the power to review the actions of the other two arms of the State and this is referred to as the process of judicial review. Effect was given to this doctrine in the case of DPP v. Mollison, in which the Privy Council ruled that the Governor General, a member of the Executive Branch, could not administer the sentence of an accused by ordering that a juvenille serve during the Governor General’s pleasure. Sentencing is the role of the judiciary and not the Executive. 2. Outline the court system for Jamaica and explain the doctrine of binding precedent in the context of your outline. Answer Student is expected to explain that the court system is hierarchical in nature with the JCPC, the highest appellate court, being at the apex of the hierarchy; that below this court is the Court of Appeal; next down in the hierarchy is the Supreme Court with several divisions (provide a couple examples). That below the Supreme Court are the inferior courts, first the RM courts and at the base of the hierarchy, the Petty Sessions Court. Students are expected to explain briefly the doctrine of binding precedent – essentially that decisions of higher courts on points of law bind lower courts so that lower court are obliged to apply the legal principles established by the superior courts. That in the context of Jamaica’s court system, this means for example that the decisions of the JCPC are binding on the CA, the SC and the inferior courts or where the CA is the highest court which has enunciated a particular legal principle then all courts below it are bound to apply the principle when deciding matters on the particular issue; that usually the CA is also bound by its own decisions but that this rule does not apply to the JCPC which is not bound to follow its previous decisions. Student may comment that this provides a measure of flexibility in the application of the doctrine of binding precedent which allows for changes and development in the common law.

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3. Distinguish between primary and delegated legislation and explain the notion that delegated legislation runs against the grain of the doctrine of separation of powers. Answer Primary legislations are Acts of Parliament. Delegated legislation is rules/regulations made by an executive authority pursuant to powers conferred on it in an Act of Parliament. Delegated legislation is considered necessary for the following reasons. It is easier and speedier to pass than Acts of Parliament (primary legislation) thereby providing flexibility in introducing and removing rules. It saves parliamentary time because the details required can be formulated and researched by persons with the relevant technical competence. Although it may bring many advantages and may thus be described as necessary, it appears to present a conflict with an important constitutional principle i.e. the doctrine of separation of powers as established in Hinds and applied in other cases e.g. Mollison. The doctrine provides for the separation of the functions of the three main organs of the state (legislature, executive, judiciary) and the idea that the job of each of these organs ought not to be encroached on or discharged by any other e.g. legislative functions ought not to be performed by the executive or the judicial organ. The fact that an executive authority is allowed to make legislation which, under the doctrine of separation of powers, should be the preserve of the legislature, does present an apparent difficulty. In the Jamaican legal system, it appears that the doctrine of separation of powers is more observed and guarded in relation to the functions of the judiciary versus the other two organs and less observed or honoured in respect of the relationship between the executive and the legislative branches. Further, although the executive authority is given the power to formulate the content of delegated legislation, the power to enact same remains with the Parliament. Moreover, Parliament may control delegated legislation. Parliament may restrict the scope of the power given to the rule-making body. Parliament may require the laying of regulations before Parliament. Parliament may require that regulations be subject to affirmative or negative resolution of Parliament.

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4. Explain the differences between delegated legislation and Acts of Parliament. Answer Define Delegated Legislation; define Acts of Parliament; Explain different procedures for enactment of Delegated Legislation and Acts of Parliament; Explain difference in judicial review process, i.e. pre-emergent control – procedural ultra vires - procedures/procedures used to create delegated legislation; post-emergent control – substantive ultra vires -whether delegated legislation in keeping with parent Act; Unreasonableness, Injustice and Unconstitutionality ( must pass 3 tests – conformity with intention, purpose and jurisdiction of parent Act; must adhere in its creation to appropriate procedural safeguards; must not violate constitutional norms or other legal norms such as public policy or justice). Acts of Parliament reviewed by Court for conformity with provisions of Constitution.

5. Mr. Natty while attending a musical event ran into Mr. Rasta. During the discussion between them Mr. Rasta told Mr. Natty that he was looking for a sturdy yet attractive vehicle to buy. Mr. Natty told Mr. Rasta that he had a 2007 Renegade Jeep for sale for $10M. Mr. Rasta, after viewing the vehicle the next day at Mr. Rasta’s residence left and wrote to Mr. Natty stating that he would give him $9M for the vehicle. Upon receipt of the letter, which had been posted, Mr. Natty called Mr. Rasta and advised him that the amount of $9M was too low. Mr. Rasta then said that he would pay $10M and would attend at Mr. Natty’s house later that same day to pay for the vehicle. Ms. Dread, who had heard about Mr. Natty’s offer for sale of the Renegade, visited Mr. Natty shortly after the telephone discussion between Mr. Rasta and himself. Ms. Dread inspected the vehicle, gave Mr. Natty a cheque for $10M, and drove off in the vehicle. Does Mr. Rasta have any claim against Mr. Natty?

Answer 4

Issue: Whether there was a valid offer and acceptance between Mr. Rasta and Mr. Natty. Relevant Principles: acceptance).

(Core concepts: Invitation to treat; offer; counter-offer;

An invitation to treat is an invitation to another person to make an offer. An offer is a definite promise to be bound on certain specific terms. The main distinction between the two is that an offer can be converted into a contract by acceptance, provided the other requirements of a valid contract are present, whereas an invitation to treat cannot be accepted. Examples of invitations to treat include newspaper advertisements that goods are for sale and the exhibition of goods for sale in a shop. The latter is illustrated in the case of Fisher v Bell in which a shopkeeper who displayed knives for sale in his shop window was found not guilty of the offence of offering knives for sale as goods on display are not an offer to sell but an invitation to treat. A counter-offer terminates an offer. This is illustrated in the case of Hyde v Wrench in which the Defendant offered a farm for sale for $1,000. The Plaintiff wrote saying he would give him $950. The Defendant refused this and the Plaintiff then said he would pay $1,000 after all. The Defendant had by now decided that he did not wish to sell to the Plaintiff for the $1,000. The Plaintiff sued for breach. His action failed because the offer of $950 was a counter-offer which terminated the Defendant’s offer of $1,000. Acceptance must be unqualified and communicated to and received by the offeror. Acceptance must be communicated by the offeree or by someone with his authority. In the case of Powell v Lee the Plaintiff applied for the post of headmaster of a school. He was interviewed and the managers decided to appoint him, however they did not make any arrangements for notifying him. One of the managers, without authority informed him that he had been appointed. The managers subsequently re-opened the matter and appointed another candidate. The Plaintiff failed in his action for breach of contract since acceptance had not been properly communicated to him. Application: Mr. Natty’s comment to Mr. Rasta that he had a Jeep for sale for $10M was an invitation to treat. The letter from Mr. Rasta to Mr. Natty saying he would give him $9M for the vehicle was an offer. The fact that the letter of offer was posted is irrelevant as the ‘postal rule’ only applies to acceptance. 5

Mr. Rasta does not have any claim against Mr. Natty. 6. On July 7, 2005, the Secretary of the Feline Building Society (FBS) handed to Mr. Lion King, in the office of the society at New Kingston, a letter containing an offer for Mr. King to purchase a property for $5M. Mr. King resided in Ocho Rios, and he took away with him to that town the letter of July 7 containing the offer of FBS. At 9:00 a.m. on the morning of July 8, Mr. King phoned the FBS and asked if payment of the sale amount could be split with half being sent by Manager’s Cheque and half by wire transfer to FBS. On the same day a letter was posted in Ocho Rios at 9:30 a.m. written by Mr. King’s Attorney-at-Law, accepting on his behalf the offer to sell the property. The letter was not received at the office of FBS until 6:00 p.m. after office hours, the office being closed at 5:00 p.m. On the same day a letter addressed to Mr. King by the Secretary of FBS revoking the offer. The letter was handed to the Delivery Clerk at 9:15 a.m. and posted at the New Kingston Post Office between 10:30 a.m. and 11:00 a.m. and received in Ocho Rios at 5:00 p.m. It was received before Mr. King’s letter of acceptance had reached New Kingston, but after it had been posted. On July 8, the Secretary of FBS sold the same premises to Mr. Jackal for the sum of $5.1M. Advise Mr. King on his legal position. Answer Issues: Whether there was a counter-offer which revoked the original offer and whether the revocation of the offer was valid. Relevant Principles: An offer is a definite promise to be bound on certain specific terms. A counter-offer must be distinguished from a request for information since a request by itself does not terminate an offer: Stevenson v McLean. In this case D offered to sell iron to P for cash. P wrote and asked for four months credit. This inquiry was not held to be a counter-offer, but a request for information. It did not therefore terminate D’s offer. Acceptance must be communicated by the offeree or by someone with his authority: Powell V Lee. In this case P applied for the post of headmaster of a school. He was interviewed and the managers decided to appoint him, however they did not make any arrangements for notifying him. One of the managers, without authority informed him that he had been appointed. The 6

managers subsequently re-opened the matter and appointed another candidate. It was held that P failed in his action for breach of contract since acceptance had not been properly communicated to him. The postal rule which is applicable to acceptance states that acceptance is complete when the letter is posted, even if the letter is lost in the post: Household Fire Insurance Co v Grant. In this case D applied for shares in the company. A letter of allotment (acceptance) was posted to him, but it never arrived. The company later went into liquidation and D was called upon to pay the amount outstanding on his shares. It was held that he had to do so. There was a contract between the company and himself which was completed when the letter of allotment was posted, regardless of the fact that it was lost in the post. ‘Posted’ means to put into the control of the post office in the usual manner and not handing it to the post man. If the letter is lost or delayed in the post because the offeree has addressed it incorrectly the ‘post rule’ will not apply. Revocation is ineffective until communicated to the offeree and revocation by post is ineffective until it reaches the offeree. Application: FBS made an offer to LK in writing on July 7. On July 8 at 9:00 a.m. LK asks FBS if payment can be split – half by manager’s cheque and half by wire transfer. Based on Stevenson v McLean , L.K’s query constitutes a request for information and not a counter-offer and therefore does not the terminate the offer by FBS. L.K’s attorney mails the letter of acceptance at 9:30 a.m. on July 8 and FBS mails a letter of revocation on the same day which reaches LK before LK’s letter of acceptance reached the FBS. This raises the question as to whether the offer was revoked before acceptance was made. Based on the ‘postal rule’, acceptance was communicated when L.K.’s attorney posted the letter at the Post Office at 9:30 a.m. On the same day that the letter of acceptance was posted, FBS posted a letter of revocation to LK. FBS’s letter of revocation reached L.K. after the letter of acceptance had been posted at 9:30 a.m. when it became effective. The revocation was therefore invalid. LK has a valid claim against FBS.

7. Mr. Killa makes reservations to stay at the Pegasus Hotel. Upon entering the lobby there is a sign on the front of the reception counter stating that “The Jamaica Pegasus will not be responsible for any loss of items 7

belonging to guests. All valuables should be left with the receptionist.” Mr. Killa checks-in, the receptionist in stating to him the rules of the Hotel omits to bring the contents of the sign to Mr. Killa’s attention. He enters the lift to go to his suite and a similar sign is affixed to the back wall of the elevator which has mirrored side wall and doors. In the evening M r. Killa leaves his suite to have dinner and leaves numerous large pieces of jewellery, which he has tried on but discarded because they do not match his outfit, on the bed. He returns to his suite early next morning and the jewellery is missing. Mr. Killa is illiterate and can only sign his name Killa. Advise Mr. Killa as to his legal position. Answer Issue: Whether the exemption clause is applicable Relevant Principles: An exemption clause is a term of a contract which seeks to exempt one of the parties from liability, or seeks to limit liability to a specific sum if certain events occur. An exemption clause can become a term of the contract by signature or by notice. If a person signs a document he is bound by it even if he does not read it. This is illustrated in the case of L’Estrange v Graucob in which the P, who was the proprietor of a café, purchased a cigarette vending machine. She signed, without reading, a sales agreement which contained a large number of ‘small print’. The machine was defective but the vendors were held to be protected by an exemption clause contained in that small print. A person may not be bound by a signed document if the other party misrepresented its terms: Curtis v Chemical Cleaning Company. In this case the P took a white satin wedding dress, trimmed with beads and sequins to the cleaners. The assistant gave her a form to sign, and when asked about its contents said that it excluded the company’s liability for damage to the beads and sequins. P then signed the form, which in fact contained a clause excluding the company from all liability. When the dress was returned it was badly stained. The company attempted to rely on their exemption clause but it was held that they could not do so since the assistant had misrepresented (albeit innocently) the effect of the form. 8

Where there is no signed document the clause will only apply if the party knows of the clause or if reasonable steps are taken to bring it to his notice before the contract is made: Olley v Marlborough Court. In this case the Plaintiff booked in at the Defendant’s hotel. When she went to her room she saw a notice on the wall stating that the hotel would not be liable for articles lost or stolen unless they were handed in for safe-keeping. The Plaintiff left some furs in the bedroom, closed the self-locking door, and hung the key on a board in reception. The furs were stolen. It was held that the exemption clause was not effective. The contract was completed at the reception desk, and accordingly a notice in the bedroom came too late to be incorporated into the contract. Application: The principle established in Olley v Marlborough is applicable. Notice was given in front of the receptionist desk prior to Mr. Killa entering into the contract with the Hotel and the location of the notice would indicate that reasonable steps were taken to bring the notice to his attention prior to entering into the contract. It is irrelevant that Mr. Killa is illiterate and can only sign his name. Mr. Killa does not have a claim against the Hotel.

8. Explain the principle of equitable estoppel using cases to illustrate the application of the principle. Answer If X promises Y that he X will not insist on his full legal rights under their contractual relationship and this promise is intended to be acted upon by Y and is in fact acted upon by Y, then X will be estopped (because of his own previous conduct) from bringing an action against Y which is inconsistent with his promise, even if Y gives no consideration. Y can use the principle of equitable estoppel as a defence against X if X attempts to enforce his original rights. The doctrine was developed to mitigate the harshness of the common law rule as enunciated in Pinnel’s case that payment on the day that a debt is due of less than the full amount of the debt is not consideration for a promise to release the balance unless the creditor agrees to take something different from what he is entitled to or if payment is made at his request at an earlier date.) 9

The case of Central London Property Trust v High Tress House illustrates the principle. In September 1939, the plaintiffs leased a block of flats to the defendants at a rent of £2,500 per annum. In January 1940, the plaintiffs agreed in writing to reduce the rent to £1,250 because of war conditions which had caused many vacancies in the flats. No express time limit was set for the operation of this reduction. From 1940 to 1945 the defendants paid the reduced ...